FAN 206 Another Union Case Before the Court: Business v. Union Political Contributions

March 27, 2019

How the Supreme Court will harmonize [the conflicting campaign finance] cases with Citizens United remains unclear. Considerations about the amassing of wealth and the corporate structure seem to be handled differently depending on the context. It may be that contributions and concerns about quid pro quo corruption, or its appearance, allow in these considerations but independent expenditures, and the speech they entail, do not. This remains to be seen. 

Chief Justice Scott L. Kafker


The case is 1A Auto, Inc. v. SullivanThe three issues raised in the case are:

  1. Should Federal Election Commission v. Beaumont (2003) be overruled because it conflicts with more recent decisions of this Court and insufficiently protects freedom of speech and association?
  2. Should contribution limits that impose different limits on different classes of donors receive strict scrutiny?
  3. Does Mass. Gen. Laws c. 55, § 8 violate the First Amendment and the Equal Protection Clause by banning businesses, but not unions and non-profit organizations, from making political contributions?

The Massachusetts high court denied the constitutional challenges in IA Auto, Inc. v. Director of the Office of Campaign and Political Finance (Mass., 2018).

Counsel of Record for the Petitioner: Jacob Huebert, senior attorney at the Goldwater Institute. Mr. Huebert was one of the counsels listed in the Petitioner’s cert. petitition and merits brief in Janus v. AFSCME (2018).

C-SPAN moderated conversation between Mark Janus and Jacob Huebert (June 29, 2018)

→ Common Cause amicus brief in the Massachusetts Supreme Judicial Court

NoteworthyPaul Clement argued the Beaumont case in the Supreme Court on behalf of the government. 


Yesterday: Jameel Jaffer Argued Knight Institute v. Trump in Second Circuit 

  • Story and video here

Forthcoming in HLR: Blocher Article 

  • Joseph Blocher, Free Speech & Justified True Belief, Harvard Law Review (forthcoming, 2019)

Abstract: Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

Professor Joseph BlocherProfessor Joseph Blocher

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally focused on truth alone, as if all true beliefs must be treated equally. This thin account leaves the epistemic theory vulnerable to withering criticism, especially in a “post-truth” era.

This Article suggests that the epistemic theory of the First Amendment might be reframed around a different value: not truth alone, but knowledge. Beginning with the tripartite definition of knowledge as justified true belief, philosophers from Plato until the present day have tried to account for what makes knowledge distinct and distinctly valuable. And in many ways law, too, already accounts for the existence and value of justifications, not just true beliefs. Identifying and exploring those threads of constitutional theory and doctrine can help provide a richer account of the cognitive First Amendment at a time when it is sorely needed. Doing so can also help resolve thorny doctrinal problems like those involving professional speech and institutional deference.

Over at Balkinization: Koppelman Weighs in on Yale Free Speech Flap

Two Forthcoming Books: One on Textbook Controversy & Another on Censorship

Forthcoming: Against Free Speech 

Article by Prof. Webber Urges Return to Proportionality and Balancing

Forthcoming Scholarly Articles

New & Notable Blog Posts

FIRE Statement on Campus Free Speech Executive Order

Stetson Professor Discusses “Statement of Principles of Free Expression”

So to Speak Podcast on Defamation Lawsuits and Content Moderation


Three “Free Speech on College Campuses” Videos from the National Constitution Center

  • Panel 3, Student Advocates & Free Speech: National Constitution Center (March 22, 2019) “Samantha Harris of Foundation for Individual Rights in Education, Michele Rovinsky of Drexel University, and Nicki Neily of Speech First explore how students are affected by university speech policies. Mark Yudof, former president of the University of California and professor of law emeritus at UC Berkeley School of Law, moderates.”
  • Panel 2, Administrators & Free Speech: “Dean Ted Ruger of Penn Law, President Tom Sullivan of the University of Vermont, President Ken Gormley of Duquesne University, and President Julie Wollman of Widener University, examine how they balance free speech and inclusion interests on campus. Jeffrey Rosen, President and CEO of the National Constitution Center moderates.”
  • Panel 1, Professors & Free Speech: “Professors Cary Nelson of the University of Illinois, Anita Bernstein of Brooklyn Law, and Amy Wax of Penn Law, discuss how they balance free speech and inclusion interests in the classroom, and the impact of academic freedom policies on professor speech. Sheldon Gilbert, Vice President for Content and Development & Senior Fellow for Constitutional Studies at the National Constitution Center, moderates.”

Strosssen’s Book on Hate Selected by Wash. U. for “Common Reading Program”

From Student Life, Washington University’s independent student newspaper:

According to [Washington University’s Vice Chancellor for Student Affairs Lori] White, the University selected “Hate: Why We Should Resist It with Free Speech, Not Censorship” by Nadine Strossen as the book for the 2019 Common Reading Program.

“We selected this book as the common reading to increase students’ understanding of the principles of free speech,” White said. “We will also have a new session during Bear Beginnings focused on providing students with some tools to engage in conversation and dialogue across differences.”

Video: Penn State President on Protecting Free Speech

News & Op-Eds

Flashback: March 27, 1961: ACLU Defends John Birch Society

2018–2019 Term: Free Expression & Related Cases

Cert. Granted

Pending: Cert. Petitions

Cert. Denied

FOIA: Review Granted

Free Expression Related Cases: Review Granted

Pending Free Expression Related Cases

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This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.